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August 2003
Military Pay/Active Duty
Recently a Probation Officer Plasencia brought to my attention the code defining "active duty." The significance is that those who are on "active duty" are to receive pay from the County for that time. The pertinent part in question at the time was the definition of "annual training" which on the government form seems to show as "not active duty." However, Title 10, sub A, part 1 of Chapter 1, section 101 of the US Code states in pertinent part that:
The term "active duty" means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
National Guard duty has it's own clause describing "active service" to mean active duty.
For those of you who may be impacted, please keep this information handy. Many thanks to PO Plasencia for finding this information!
Coroners
Sandra Quiet has indicated the differential back pay, for those who were short, should be in all your paychecks within the next couple of weeks.
Also, if you are having problems with your OT being computed as Comp Time first, then changed to OT, please contact your payroll clerk to get this fixed. According to the MOU you should be receiving the money on the check for the TLR you submit, not another pay period later.
Sick Leave
Sick leave is not a right, although a negotiated item in the MOU. It is different from Vacation Leave, which is considered "earned" under California law. This is why an employer has the right to look over your shoulder when you are using up all your sick leave every year. However, the employer does not have the right to have a diagnosis of your personal health issues. They are entitled to a note from a doctor indicating that you are under his or her professional care, that you were too ill or incapacitate to work on a particular day, and that you are well enough to return to work on a subsequent day.
There is a caveat to this. The employer, with good cause, has a right to send an employee to see the County doctor for an examination for fitness for duty.
Each job classification has spec's that indicate what you must be able to perform in order to stay employed. So if you have an off-work order, your doctor must indicate what it is that you cannot do at work, not what is wrong with you. The problem with some of these is that in being overzealous, a doctor might find that you cannot perform certain duties - which in essence will for you to leave you job should any of those duties be a necessary part of your employment.
The County pays out enormous amounts of money for people out on Worker's Comp claims and 4850. Those persons who abuse the system make it harder for their co-workers. Not just because the position cannot be filled, so others have to do the work for the absent employee, but also because the money is being spent on a fraudulent claim. That means there may not enough money to keep people on the job, forcing lay offs. Of course, we are thankful that not many people commit fraud on the system.
PLEASE NOTE:
California Labor Code Section 233 [Kin Care] allows an employee time off to care for an ill child, parent, spouse, or domestic partner. If the employer gives sick leave, then the sick leave earned and used under Kin Care becomes a right. Under SB 1471, signed into law in 2002, if the employer uses time used under Kin Care as a basis for discipline, demotion, discharge, or suspension it would be a per se violation of the law. The new law would entitle the employee to equitable and legal relief.
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